Maintainability of case
Thyagarajan
(Querist) 19 October 2011
This query is : Resolved
Many experts have counseled me running of tuition classes in flats may not be permissible as against local municipal rules. Also the Apex court is of view that giving tuition does not fall into the category of professional activities like that of Charted Accountants, lawyers, and doctors etc that are allowed in flats. However a flat owner in our complex had challenged the owners’ association decision not to grant permission to run tuition classes, in a civil court. The peculiar aspect is that the case is filed by the flat owner’s wife who is affected. The association lawyer’s counter is that the case itself is not maintainable before the courts as she is not a member of the association leave alone the merits of the case. Maintenance charges receipts are being issued in the name of her husband only. Is the stand taken by association lawyer correct?
Devajyoti Barman
(Expert) 19 October 2011
No
Since the decision of the Association affects the prospect of the wife only, she can very well maintain the suit .
However to avoid the lacuna of non-joinder of necessary party, her husband needs to be added as a [party to the suit unless he is already made a party.
Thyagarajan
(Querist) 19 October 2011
The husband is distancing himself from the issue and had not made himself as a party.
That is why the wife made the case.The lawyer contention is with out the consent of the owner no one residing with him can carry on any tuition.
I will wait till the case starts and get what the wife says.
ajay sethi
(Expert) 19 October 2011
your lawyer has taken good defence . if any member is aggrived by any decision of the society he should challenge the same .
however as far as tution claases are concerned if flat is used for residence and for tution classes society cannot object to the same . it is only if tution classes are being conducted can the society object .
Thyagarajan
(Querist) 20 October 2011
In my query I had mentioned about Apex court’s view on professional activities. I had seen in the judgment that, as Mr.Sethi had observed, Apex court feels nothing wrong in the flat used for professional activity partly and the rest for residence and so the society can not object. But in the classification for professional activity in the judgment, giving tuition is missing. As Mr. Barman had said , the husband not making himself as a party is an issue and the judge will only be too pleased to close the case on ground of ‘lacuna of non-joinder of necessary party’ though the case is maintainable. Thanks for your answers
